Believe it or Not, We've Been Here Before

The Insurrection Trial Against a Former Officer of the United States

Counting of Electoral Votes! A former famous elected official! Insurrection! Believe it or not, we’ve actually seen this before. I have just two words for you:

Aaron Burr.

Yes, that one. The one who is the main narrator in the Hamilton Musical. The one that so angered Thomas Jefferson as a Presidential Candidate¹ that Jefferson convinced Congress to change the rules with the 12th Amendment so that Burr would not be his Vice President again. The one that fatally shot founding father Alexander Hamilton in a duel at Weehauken, NJ back in 1804 and still managed to evade prosecution of it and serve out his VP term in infamy.

Yeah, that Aaron Burr.

But if that is all you ever knew about him, well sit down, strap in and get ready, because Burr was just STARTING to get interesting at that point.

Once Burr left the Vice Presidency, he did what anyone would do; he went on a nice vacation out west. He started out in Ohio and Kentucky and then made his way down the Ohio River to the Mississippi and eventually down south to New Orleans. On this sojourn he noticed an odd paradigm; people west of the Appalachians HATED Washington D.C. and the federal government. Wherever he went, he was hailed AS A HERO for shooting Hamilton, that Yankee who wanted to centralize power and money out east. Working men and women in the growing territories of the country didn’t really care for paying taxes or catering to the privileged crowds on the coast (sound familiar?). They worked hard with their hands, not in some aristocratic clique counting all of their money and banking, trading off the hard work of others. The sentiment of the Revolutionary War was still in the air (it was only 25 years previous and this new government had barely been around for a little more than a decade) and not everyone was thrilled with the new government. Burr saw an opportunity.

The Plan

Commerce in the center of the country was dominated by the Mississippi River at the time. All trade in and out comes down the river through the port of New Orleans.² To the east of New Orleans was Florida, modestly and disputedly controlled by the Spanish but even they saw the writing on the wall after the US kicked Britain out and were packing their bags there. To the west was New Spain, (Texas and Northern Mexico) an area long beligerent, under the control of Spain and locally by Mexico City, and ripe for the taking for anyone with the courage to try it. Burr planned on instigating a battle in New Orleans, claiming Texas and Northern Mexico as an independent nation and putting himself at it’s head as a King or Emperor.

The head of the United States Army in New Orleans was a longtime Burr friend, General James Wilkinson. Wilkinson had tried to “liberate” Kentucky and Tennessee from the colonies in the 1780s to no avail. When Burr was Vice President, he convinced Jefferson to appoint Wilkinson as General in New Orleans, which makes you wonder how long this idea bounced around Burr’s head. They corresponded in coded messages about Burr’s plan to liberate New Orleans. Burr also approached the British Minister to the Unites States, Anthony Merry, who gave him money for his endeavor and who messaged back to Britain that another rebellion in the US was brewing. Burr then approached the Spanish Diplomat who he told the secession was against the US, not Spain or Mexico, and was given some funds as well. Sympathetic parties in Ohio and Kentucky gave him access to fighters, guns, ammunition and boats that he could sail down the Mississippi and attack New Orleans.

Arrest and Indictment

Burr’s actions out west raised all sorts of alarms. The federal attorney for Kentucky alerted Jefferson and the DC establishment, but they dismissed it as political claptrap. (“BURR DERANGEMENT SYNDROME!”) Newspapers started printing about the coming rebellion and they were soundly dismissed as “alarmist propaganda.” (“FAKE NEWS!”)

So how did Burr get stopped? Wilkinson blabbed to Jefferson. He gave him decoded messages from Burr³ and described the whole plot to him. Burr, traveling down the Mississippi with a small group of armed men was taken at Bayou Pierre, LA just north of New Orleans and arrested.

But rather than bring him back to Washington D.C. to stand trial, where he had many acquaintences and people familiar with him and had a favorable standing, Jefferson instead chose to try him in Jefferson’s hometown of Richmond, VA, a southern city in a southern state where Burr knew nobody. There was just one problem; the judge who rode circuit for Virginia was someone who absolutely abhorred Jefferson, Chief Justice John Marshall.⁴

The trial was the biggest ticket in town; the O.J. Simpson trial of its day.⁵ Right off the top, Marshall dismissed a high misdemeanor of assembling a military expedition for purposes of insurrection because there was no proof the group Burr assembled were military in nature.⁶ That left only a charge of Conspiracy to Commit Treason. The prosecutor, George Hay was given blanket pardons, already signed by Jefferson, to get any and all witnesses to cooperate against Burr. Burr and his attorneys made the defense that it was just a political smear campaign.⁷

In the end, Burr got away with it.

Burr was given every advantage by Marshall, but the case is noteworthy for other reasons. It helped establish the ideas of executive privilege and the independence of the executive. Marshall’s language and opinions helped describe that the President is not above the law, and Burr’s subpoenas of Jefferson and his papers, if they were not superfluous or vexatious, would have to be adhered to. Marshall ultimately decided that because Burr had not (yet) committed an act of war, he could not be convicted of Treason. As Wikipedia puts it:

So what does it mean for Trump?

Well, Trump didn’t actually commit an overt act on January 6th. He merely suggested it and engaged in conspiracy for it as per Marshall’s description above. But the charges against Trump are not for Treason, they are for actions peripheral to and inciting the insurrection on January 6th. I think we can anticipate a pretty “O.J.-esque” trial regarding this in the coming year, not just because Trump was a President or is running again to be one, but for the precedential nature of many of these decisions, some of which haven’t been tested since this case in 1806.

As for Burr, after his victory he lived the rest of his life in ignominy. He lived off his daughter and son in law,⁸ traveled to England where he lived off of others, and faded from the spotlight. Over time, his role in the Revolutionary War and the start of our country became more of a trivia question or footnote than consequential as a matter of history.⁹

One can only hope after all this is done that Trump will scuttle off from the public stage in a similar way.

PurpleAmerica’s Recommended Stories

My favorite book on the whole affair is “American Emperor: Aaron Burr’s Challenge to Jefferson’s America.” The book gets into much further details and is quick, easy read.

PurpleAmerica’s Cultural Corner

You can’t talk about Aaron Burr nowadays and not talk about the Broadway Masterpiece, “Hamilton.” One of the great things about the musical is that it is told largely from Burr’s point of view about Hamilton and the events surrounding the Revolution. Lin-Manuel Miranda dramatized the two main characters as Hamilton’s genius who often jumps without thinking and Burr’s intelligent snake in the grass, played perfectly by Leslie Odom Jr.,¹⁰ biding his time for the right opportunity. It really was masterfully done.

The two best songs from the show that completely personify Burr’s point of view are “Wait for it” and “The Room Where it Happens.”

In “Wait For It” he demonstrates his manner in dealing with life; cool, calmly, not drawing too much attention, and then making the most of his chance when it presented itself. That is completely in contrast to Hamilton’s persona and continued successes, which irritates and confounds Burr.

In “The Room Where it Happens,” we see Burr’s jealousy and failures, as Hamilton flat out ridicules Burr’s modus operendi of “waiting for it.” Burr’s lust for power is on full display and the rest of the play focuses on how Burr’s envy leads to his eventual downfall. *Click* *Boom*

PurpleAmerica’s Obscure Fact of the Day

After the trial when Burr was largely destitute and living off the graciousness of others, one of those figures he lived parasitically off of was renowned British philosopher Jeremy Bentham who found him to a be “creepy, sulking, pitiable creature.”

PurpleAmerica’s Final Thought

We often talk about the Unites States as if all 50 states of our country and from sea to shining sea were inevitable. But looking back, way back to the early 1800s, that was seriously in doubt. Imagine what the United States would be like had we chosen another route, and had dozens of independent countries in what is now the USA. It would be a patchwork much like continental Europe. No doubt some today would actually prefer it, but we would be a lesser, weaker country for it.

We were actually not that far off from this eventuality.

Footnotes and Fun Stuff

1. Because of how the President and Vice President were chosen back then, and a lack of foresight regarding the Electoral Vote electors, Jefferson and Burr ended up tied for President in the Electoral College. It went to the House of Representatives, and Burr sensing an opportunity, refused to concede to Jefferson for the Presidency even though Jefferson was his party’s Presidential candidate and Burr the VP candidate. Eventually, after dozens of votes, Jefferson eventually became President.

2. This fact was important militarily for the growing United States. It was a reason why Britain attacked it in the War of 1812, only to be stymied by a pirate named Jean Lafitte. The fact that the battle actually took place after the War of 1812 was over is an interesting footnote to it, but demonstrates the importance of New Orleans to access to the interior of the country.

3. Wilkinson also downplayed his role in the whole affair. Because the messages were coded, he omitted a section in translating to others that demonstrated he supported Burr’s endeavor. He was later found out and stripped of his position by Jefferson who never trusted him anyway.

4. Marshall was given his appointment to the Court in the famous “midnight appointments” at the very end of Adams’ term and just before Jefferson took office. These appointments were made in haste and some were not delivered, leading to the famous case “Marbury v. Madison” which established judicial power. That was probably the singular most important event in American Governance, because had Marshall smacked down Jefferson, or Jefferson ignored the decision of the Court, the young government would have devolved and fallen apart. Instead, Marshall gave Jefferson a little smack talk in his decision, but ultimately let him win. That Marshall was presiding over a court hearing about last second appointments of which his was one was a glaring conflict of interest for the Court, but it worked out OK in the end.

5. Or in a more modern context, it was the Donald J. Trump trial of its day.

6. There were just dozens of them carrying weapons for the hell of it you know.

7. Sound familiar?

8. Ivanka and Jared better get ready.

9. True story, the first time I heard of Aaron Burr was on a 70s game show “Password.” Arte Johnson was the star helping out the contestant and the answer to the puzzle was “Aaron Burr.” None of the contestants got it and Arte shot out “Who the hell is Aaron Burr?”

10. It should be noted, Odom won the Tony Award for Best Actor over Lin Manuel Miranda, the only one Miranda lost that night for which he was nominated. He really did a fantastic job of it.